PATRICIA D. BARKSDALE, Magistrate Judge.
This is a case under 42 U.S.C. § 1383(c)(3) to review a final decision of the Acting Commissioner of Social Security denying Kayla Flinchbaugh's
Flinchbaugh was born in 1989 and last worked in April 2010. Tr. 212, 271. She has worked briefly as a fast-food cook and housekeeper.
The ALJ entered a decision on March 3, 2015. Tr. 28.
At step one,
At step two, the ALJ found Flinchbaugh suffers from severe impairments of asthma, gastroesophageal reflux disease, status post-gastrointestinal surgery, borderline intellectual functioning, dysthymic disorder, and anxiety-related disorder. Tr. 18.
At step three, the ALJ found Flinchbaugh has no impairment or combination of impairments that meets or medically equals the severity of any listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 19. He considered the "paragraph B"
After stating he had considered the entire record and summarizing the medical evidence, the ALJ found Flinchbaugh has the residual functional capacity ("RFC") to perform "less than the full range of light work":
Tr. 22-26.
At steps four and five, the ALJ found Flinchbaugh has no past relevant work but can perform jobs the vocational expert identified (assembly machine tender, bottling line attendant, and packing line worker), and those jobs exist in significant numbers in the national economy. Tr. 27-28. He therefore found no disability. Tr. 28.
A court's review of an ALJ's decision is limited to determining whether the ALJ applied the correct legal standards and whether substantial evidence supports his findings. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Substantial evidence is "less than a preponderance"; it is "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id. A court may not decide facts anew, reweigh evidence, make credibility determinations, or substitute its judgment for the Commissioner's judgment. Id. A court must affirm the ALJ's decision if substantial evidence supports it, even if the evidence preponderates against the factual findings. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
Regardless of its source, the Social Security Administration "will evaluate every medical opinion" it receives. 20 C.F.R. § 416.927(c). "Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of . . . impairment(s), including . . . symptoms, diagnosis and prognosis, what [one] can still do despite impairment(s), and . . . physical or mental restrictions." 20 C.F.R. § 416.927(a). Opinions on issues that are dispositive of a case, such as whether a claimant is disabled or able to work, are not medical opinions because they are opinions on issues reserved to the Commissioner. 20 C.F.R. § 416.927(d)(1).
An ALJ "must state with particularity the weight given to different medical opinions and the reasons therefor." Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). "In the absence of such a statement, it is impossible for a reviewing court to determine whether the ultimate decision on the merits of a claim is rational and supported by substantial evidence." Id. "Unless [an ALJ] has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's duty to scrutinize the record as a whole to determine whether the conclusions reached are rational." Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (internal quotation marks omitted). If an ALJ does not "state with at least some measure of clarity the grounds for his decision," a court will not affirm simply because some rationale might have supported it. Winschel, 631 F.3d at 1179.
Unless the Social Security Administration gives a treating source's opinion controlling weight, it will consider several factors to decide the weight to give a medical opinion: examining relationship, treatment relationship, supportability, consistency, specialization, and any other relevant factor. 20 C.F.R. § 416.927(c).
An acceptable medical source is a licensed physician (a medical or osteopathic doctor), licensed or certified psychologist, licensed optometrist, licensed podiatrist, or qualified speech-language pathologist. 20 C.F.R. § 416.913(a). An ALJ may also consider evidence from sources not listed as acceptable medical sources. 20 C.F.R. § 416.913(d). That evidence may show the severity of an impairment and how it affects a claimant's ability to work but cannot establish the existence of a medically determinable impairment or constitute a "medical opinion." Social Security Ruling ("SSR") 06-03p, 2006 WL 2263437 (Aug. 9, 2006).
A claimant's RFC is the most she can still do despite her limitations. 20 C.F.R. § 416.945(a)(1). The Social Security Administration uses the RFC at step four to decide if she can perform any past relevant work and, if not, at step five with other factors to decide if there are other jobs in significant numbers in the national economy she can perform. 20 C.F.R. § 416.945(a)(5).
The limitations found when assessing the "paragraph B" criteria are not an RFC assessment. SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996). The mental RFC assessment "requires a more detailed assessment by itemizing various functions." Id.
The mental demands of unskilled jobs include "the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting." SSR 85-15, 1985 WL 56857, at *4-5 (January 1, 1985). If an ALJ finds a claimant has moderate difficulties in concentration, persistence, or pace, he must implicitly or explicitly account for any related limitation in his hypothetical question to the vocational expert or find the claimant's ability to work is unaffected by the difficulties. Winschel v. Comm'r, 631 F.3d 1176, 1181 (11th Cir. 2011). Failure to do so renders the hypothetical question to the vocational expert incomplete and precludes reliance on the expert's testimony as substantial evidence supporting finding the claimant able to work. Id. "[R]estricting the claimant to simple and routine tasks adequately accounts for restrictions related to concentration, persistence, and pace where the medical evidence demonstrates that the claimant retains the ability to perform the tasks despite limitations in concentration, persistence, and pace." Timmons v. Comm'r of Soc. Sec., 522 F. App'x 897, 907 (11th Cir. 2013) (citing Winschel, 631 F.3d at 1180).
An ALJ's determination may be implicit, but the "implication must be obvious to the reviewing court." Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983). "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009). If "remand would be an idle and useless formality," a reviewing court is not required to "convert judicial review of agency action into a ping-pong game." N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969).
Dr. Yates saw Flinchbaugh in June 2013 for a psychological evaluation. Tr. 564-74. He described her reported history and observed behavior during testing, noting she had a "generally depressed and inept attitude" and "very low" self-confidence. Tr. 565-66. He observed she showed increased effort with psychomotor productivity but otherwise displayed "low expectations, negative expectations, low frustration[,] [sic] and a sense of not being able to do well on anything." Tr. 566-67. He administered a test yielding a full-scale IQ of 71. Tr. 567. He also administered a "continuous performance test," which indicated attention-related deficits, vigilance limitations, inconsistent reaction times, and "a number of neuropsychologically based problems." Tr. 571-72. He observed her thinking is tentative and self-defeating; she is "a very dependent individual"; she is "extremely depressed" and "always anxious [and] hypervigilant"; and she has "a very poor self-image, a very poor self-concept, [and] remarkably limited coping skills." Tr. 572. He noted many of her difficulties were offset by her relationships with her boyfriend and his aunt. Tr. 572-73. He opined, "She does not have any sense of self-competence, she is easily disorganized and maladaptive when under the most mild levels of stress, and she is almost completely inept in terms of functioning on her own." Tr. 573. Under, "Summary and Recommendations," he provided the following opinions:
Tr. 573. He diagnosed her with reading disorder; attention deficit hyperactivity disorder, predominantly inattentive type; generalized anxiety disorder; dysthymic disorder; and post-traumatic stress disorder. Tr. 573-74.
Grissinger saw Flinchbaugh in August 2013 (a few months after Dr. Yates saw her) for a vocational evaluation. Tr. 376-84. In a report, he discussed her background and observations of her behavior during the evaluation. Tr. 376-77. He noted that she reported her relationship with her boyfriend had deteriorated since the time of her evaluation by Dr. Yates. Tr. 376. He observed she had "very scattered" thoughts and conversation, and she was "pleasant as long as the evaluator was qui[et] and listening to her [but] quite suspicious when asked questions." Tr. 377. He observed she remained cooperative "with some exception" during the evaluation and was "generally able to remain focused and on-task for the duration of the test administration." Tr. 377. On "functional limitations in employment and her personal life," he opined:
Tr. 378 (emphasis in original).
Grissinger tested Flinchbaugh's ability to perform a variety of work-related tasks and made the following findings: her "ability to perform tasks that involve small finger dexterity was considerably above-average"; she could "perform tasks involving sorting by color and alpha-numeric system at competitive speed and accuracy"; she scored "lower than trainable norms" with simulated assembly, possibly because she did not enjoy performing that work sample; she had "an entry level ability to perform work in quality control of mechanical parts inspections"; and she had normal color vision. Tr. 379-81. He discussed Dr. Yates's findings concerning her intellectual functioning and academic skills. Tr. 381.
Under, "Vocational Summary/Implications," Grissinger provided the following opinions. Flinchbaugh "is not a candidate for certification programs as she desires, but rather should focus on elemental jobs in which she can perform repetitious jobs without formal training." Tr. 382. She has an "exceptionally low" potential for obtaining a GED. Tr. 382. She "should not return to any job that requires multi-tasking or rapid work under pressure of time." Tr. 382. Her past work as a housekeeper is "more in keeping" with her ability, but it also requires speed and accuracy. Tr. 382. She demonstrated an ability to "work at competitive speed when she puts forth the effort," but she may need assistance from a job coach for any job due to her personality. Tr. 382. She has transferable skills for the housekeeping job, but her "most difficult barrier" is her socialization skills. Tr. 382. She "is not properly prepared for placement without increased stabilization of her psyche" through therapy, though she is likely to resist therapy. Tr. 382. She needs to attempt to regain social security income and "be prepared to work part-time in jobs that primarily have requirements of working with `things as opposed to people.'" Tr. 382-83. She cannot work in a multitasking job that would require her to constantly prioritize work duties, but "a daily routine that rarely changes is most suitable for" her. Tr. 383. She "needs to initiate psychiatric intervention and follow up therapy before considering employment or else[] the cycle of being fired will likely continue." Tr. 383. "Therapy needs to be successful and may require several months or longer before [she] is ready for employment." Tr. 383. Her ability to remain on-task "depends much on her interest for the task. If she is interested she can work quickly and accurately. She works best when she is alone and working with `things.'" Tr. 383. He concluded:
Tr. 384.
In evaluating Flinchbaugh's social functioning at step three, the ALJ observed she alleged having difficulty getting along with family, friends, neighbors, and others. Tr. 20. He observed she also admitted she could shop weekly and care for her children. Tr. 20. He acknowledged Dr. Yates's opinion that, under stress, she is prone to withdraw or experience grossly disorganized thinking and behavior and would need careful psychiatric assessment and treatment. Tr. 20. He acknowledged Grissinger's opinions that she is not prepared for job placement without further stabilization of her psyche, her socialization skills present her most significant barrier to working, she needs long-term therapy, she would be difficult to place in a job due to her reluctance to accept help, and a job coach would benefit her. Tr. 20. He gave some weight to those opinions but found they did not "appropriately account for [her] normal presentation at physical examinations." Tr. 20. He found she has moderate difficulties with social functioning. Tr. 20.
In evaluating Flinchbaugh's difficulties with concentration, persistence, or pace at step three, the ALJ discussed her alleged difficulty "understanding, remembering, concentrating, and handling stress or changes in routine" and her alleged inability to use a check book or money orders. Tr. 20. He observed she admitted "finishing what she starts as well as being able to drive, pay bills, count change, and handle a savings account." Tr. 20. He acknowledged Dr. Yates's opinions concerning her functioning and Dr. Yates's observation that she showed some problems maintaining attention, including her increasingly inconsistent reaction times during testing. Tr. 21. He acknowledged Grissinger's opinions that, given her borderline intellect, she should focus on elemental, repetitious jobs not requiring formal training; and that she should not perform any job requiring multitasking or rapid work with time pressures. Tr. 21. He observed she "was generally able to remain focused and on-task for the duration of her vocational evaluation" with Grissinger in August 2013. Tr. 21. He found she "has ongoing difficulty in this area" but "her problems are moderate." Tr. 21.
In discussing his RFC finding, the ALJ observed there was no evidence Flinchbaugh received mental-health counseling or psychiatric treatment, was ever admitted to a crisis-stabilization unit, or was ever hospitalized for psychiatric problems. Tr. 25. He stated he gave "the most weight" to Dr. Yates's and Grissinger's opinions, explaining:
Tr. 26.
Substantial evidence supports the ALJ's evaluation of Dr. Yates's and Grissinger's opinions. Dr. Yates's summary and recommendations primarily focus on Flinchbaugh's need for simple, routine, and repetitive work tasks with specific instructions and little to no decision making and for therapy to address depression, anxiety, and post-traumatic stress. See Tr. 573. Likewise, Grissinger opined she has the ability to perform simple, routine, and repetitive tasks but would have difficulty socializing with others. Tr. 377-83.
The ALJ accounted for most of Dr. Yates's and Grissinger's opinions by limiting Flinchbaugh to simple, routine, repetitive work with no interaction with the public and only occasional interaction with coworkers. The ALJ acknowledged Dr. Yates's opinions and findings concerning Flinchbaugh's attention deficits and Grissinger's opinions concerning her socialization skills and need for psychiatric stabilization but found they did not require additional functional limitations in light of evidence that she engaged in many daily activities and was pleasant and cooperative at medical appointments. See Tr. 26. He observed she could drive, care for her children, prepare meals, wash dishes, clean, iron, mow the lawn, vacuum, shop, check Facebook on her phone, pay bills, count change, and handle a savings account. Tr. 23. He observed she had been able to obtain a driver's license and had remained "focused and on-task for the duration of her vocational evaluation" in August 2013. Tr. 23. Substantial evidence supports those observations. Tr. 46-49, 51, 288-89, 349. He observed that, at medical appointments, she often had been alert, oriented, cooperative, pleasant, and conversant, and she had maintained good eye contact. Tr. 24. Substantial evidence also supports those observations. Tr. 421, 423-26, 428, 430, 437, 496-502, 504-08, 514, 516-17, 526, 537, 543, 587-89, 595, 598, 602, 608, 611-12. Those reasons support the ALJ's finding that her difficulties with social functioning and in maintaining attention do not require limitations beyond those found because they demonstrate she is able to regularly perform a range of simple tasks and maintain sufficient attention and composure to complete simple activities.
Flinchbaugh argues the ALJ failed to account for Dr. Yates's opinions concerning her limitations in attention, persistence, and pace and failed to explain why he did not account for them. Doc. 14 at 10. She cites several Eleventh Circuit cases discussing the need to account for limitations in concentration, persistence, and pace in a hypothetical question posed to a vocational expert. Doc. 14 at 10-11.
The ALJ considered Dr. Yates's opinions concerning Flinchbaugh's difficulties with concentration, persistence, and pace in determining whether her impairments meet or equal the severity of a listing. See Tr. 20-21. He found moderate difficulties in those areas. Tr. 20. He then stated the "limitations identified in the `paragraph B'. . . criteria are not a residual functional capacity assessment" and observed the mental RFC at steps four and five "requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraph B." Tr. 22. He stated the RFC assessment "reflects the degree of limitation [he] found in the `paragraph B' mental function analysis." Tr. 22. He gave significant weight to many of Dr. Yates's opinions but rejected the opinions to the extent they conflicted with the RFC finding by indicating additional limitations in attention and persistence. Tr. 26. He explained such limitations were inconsistent with Flinchbaugh's many daily activities and unremarkable presentation at medical appointments. Tr. 26. As discussed, substantial evidence supports those findings. The ALJ therefore adequately explained why he did not account for additional functional limitations arising from Dr. Yates's opinions concerning Flinchbaugh's ability to maintain attention and persist in activities.
Flinchbaugh argues "there is no indication that [she] performed her daily activities eight hours a day, five days a week" and she "is allowed to be pleasant at her medical appointments." Doc. 14 at 12. She argues the ALJ's observations concerning her activities and presentation at appointments do not "change the fact that she has significant difficulties concentrating and paying attention." Doc. 14 at 12.
The ALJ did not rely on Flinchbaugh's activities to find she can concentrate and maintain attention for an uninterrupted 8-hour period. Instead, he found her activities supported finding that she could maintain sufficient attention and concentration to perform simple, routine, and repetitive work during a normal work schedule. Evidence of her activities conflicts with Dr. Yates's opinion that she was almost completely dependent on others and had "remarkably limited coping skills." The ALJ could rely on inconsistencies between her activities and Dr. Yates's opinions in evaluating those opinions. See 20 C.F.R. § 416.927(c)(4) ("Generally, the more consistent a medical opinion is with the record as a whole, the more weight we will give to that opinion."). Likewise, the ALJ did not find Flinchbaugh's presentation at appointments incompatible with a finding of disability. Instead, he found her presentation inconsistent with Dr. Yates's opinion that she withdraws or experiences disorganized thoughts under even mild stress and Grissinger's opinion that her socialization skills present her most significant barrier to working. See Tr. 20.
Flinchbaugh argues dictum from Winschel v. Commissioner, 631 F.3d at 1180—that limitations to simple, routine tasks or unskilled work adequately account for limitations in concentration, persistence, or pace if "medical evidence" supports that finding—does not apply. Doc. 14 at 12. She argues no medical evidence supports finding her ability to work is unaffected by her moderate limitations in maintaining concentration, persistence, or pace, and "every single firsthand evaluation of [her] functioning supported severe and disabling limitations." Doc. 14 at 12-13.
As discussed, the ALJ relied on substantial evidence supporting that a limitation to simple, routine, repetitive work adequately accounted for Flinchbaugh's difficulties maintaining concentration, persistence, or pace. Even Dr. Yates's opinion provides some support for that finding; though he observed the results of the tests he administered supported that she has significant attentional deficits, under the "Summary and Recommendations" section of his report, he opined:
Tr. 572-73. He also noted her functioning was complicated by depression, anxiety, fear, and post-traumatic stress, and she would benefit from "careful psychiatric assessment for medication needs," therapy, and training in "stress-inoculation to increase her coping skills." Tr. 573. Those opinions suggest Flinchbaugh can perform work that is simple, routine, and repetitive despite her attention limitations.
Flinchbaugh provides little argument on the ALJ's evaluation of Grissinger's opinions. She summarizes the opinions, recites the ALJ's explanation of the weight he gave them, points to some opinions she apparently believes are inconsistent with the RFC finding, and concludes, "Mr. Grissinger's opinion supports a finding of disability in this case. The ALJ failed to apply the correct legal standards and made findings not supported by substantial evidence." Doc. 14 at 14-15.
Flinchbaugh arguably fails to articulate any error in the ALJ's evaluation of Grissinger's opinions. His opinions are largely consistent with the ALJ's RFC finding; he opined Flinchbaugh can perform simple, routine, repetitive work. Tr. 382-84. To the extent he opined her "socialization skills" presented her most significant barrier to working, the ALJ accounted for some social limitations but concluded, based on substantial evidence, that she could sustain some level of social interaction. To the extent he opined her impairments would prevent her from working fulltime without further psychiatric stabilization, that opinion, even if from an acceptable medical source (which Grissinger is not), is on an issue reserved to the Commissioner. See 20 C.F.R. § 416.927(d). Substantial evidence supports the ALJ's finding that other evidence in the record indicates she can work.
Remand to reconsider Dr. Yates's and Grissinger's opinions is unwarranted.
Because the ALJ applied the correct legal standards and substantial evidence supports his decision, I recommend:
The Commissioner substantially revised the regulations on the consideration of medical evidence for claims filed on or after March 27, 2017. See 82 Fed. Reg. 5844-01, 5844 (Jan. 18, 2017). Flinchbaugh filed her claim before that date. All citations are to the regulations in effect on the date of the ALJ's decision.
In light of the amendments to the regulations effective March 27, 2017, the Social Security Administration rescinded SSR 06-03p as inconsistent with the revised regulations. See Rescission of Social Security Rulings 96-2P, 96-5P, and 06-3P, 2017 WL 3928298 (Mar. 27, 2017). Because the revised regulations do not apply here, SSR 06-03p applies.
